Rafale fighter jet purchase: A controversy revved up and ready to take off?

A three-judge Bench of the Supreme Court of India headed by Chief Justice Ranjan Gogoi has asked for details of the decision-making process in the Rafale deal in response to three PILs

Despite the government’s best efforts, the Rafale deal seems to be acquiring a life of its own. Irrespective of the government underlining the need for secrecy, it is likely to remain pinned down on the controversial purchase of 36 aircraft from Dassault Aviation in ready-to-fly condition at an inexplicably high price.

A three-judge Bench of the Supreme Court of India headed by Chief Justice Ranjan Gogoi has asked for details of the decision-making process in the Rafale deal in response to three public-interest suits. The court has deliberately kept the price, the technical suitability of the aircraft and allegations of corruption made in the petitions, outside of its purview.

Focusing instead on institutional processes, the court has said: “We would like to be apprised by the government of India of the details of the steps in the decision-making process leading up to the award of the order for the defence equipment in question, i.e. Rafale jet fighters (36 in number).” The government has to file its reply in a sealed cover by October 29.

This simple order is sufficient to give the Modi government sleepless nights, as effective from October 10, the Rafale deal is under Supreme Court scrutiny. The court will find out whether the proposal for the outright purchase of 36 aircraft was mooted by the defence ministry based on the requirements of the Indian Air Force and when; details, if any, of the inter-ministerial consultations; whether the Cabinet note on the subject was moved before or after the Prime Minister’s visit to France and the dates on which the Cabinet Committee on Security and subsequently the full Cabinet cleared the proposal. This will clarify if the constitutionally laid down Allocation of Business Rules and the Transaction of Business Rules were bypassed. 

The bypassing of the rules requires that the reason for the emergency be demonstrated. Irregularities in the decision-making process may lead to a Supreme Court-monitored Special Investigation Team. It is possible that a full disclosure might allow the court to understand why Hindustan Aeronautics Limited was sidelined.

By asking for the government’s reply in a sealed cover, the judges have pre-empted any excuse of secrecy in national interest protested by the Attorney General in Court. He had sought to underline this argument by saying, “I myself will not be given the details.”

The judgment came on the same day as the French news website mediaparte.fr made a fresh expose quoting a document from Dassault which indicated that the company was asked to choose Anil Ambani’s Reliance Defence as its offset partner in India as a "trade-off" for the contract.

The report by Karl Laske and Antton Rougetin says that a document in their possession shows that a top official of Dassault Aviation, Loik Segalen, had told the trade union representatives of the company that the joint venture with Reliance Defence was “imperative and obligatory”.

The obvious question the report raises is: Who in the Government of India made it “imperative and obligatory” for Dassault to part with a large portion of the Rs 300-billion offset contract to a designated firm in India with no experience in aircraft manufacture or maintenance? Expectedly, Dassault has asserted that it "has freely chosen to make a partnership with India's Reliance Group".

Unlike the largely obsequious Indian media, the French mediapart.fr has kept up its investigations. It is already charging one euro for reading its Dassault story. That promises to be a substantial revenue inflow if even ten thousand Indians read the report. Even without Indian media actively pursuing the Rafale deal, the investigations of the French press could spell further trouble for the Modi government.

Defence Minister Nirmala Sitaraman’s official visit to France at this juncture has been projected by Congress President Rahul Gandhi as an attempt to ensure that Dassault and the Indian government remain on the same page. He dubbed it as an attempt “to generate minutes of imaginary meetings held between the French & our MoD [Ministry of defence] and the “the beginning of the great Rafale cover up”. It is a remarkable coincidence that after Sitharaman’s visit to Paris, Dassault suddenly revealed ‘new’ information – that Reliance Defence received only 10 per cent of the offset.

The government has also been taken aback by the Central Vureau of Investigation (CBI) Director accepting a complaint from political activist Arun Shourie and eminent lawyer, Prashant Bhushan asking for a probe into the Rafale deal and the award of offset contracts. In a rare move, the CBI director, Alok Verma, reportedly met the duo for 45 minutes in his office. The CBI director normally does not receive representations directly, nor does he meet politicians in his office.

The Chief Vigilance Commissioner (CVC) and the Comptroller and Auditor General have already been moved by the Congress party. This activation of the statutory bodies reinforces the perception that the government is encircled. 

Yet even as these fortuitous developments have given fresh momentum to the controversy surrounding the Rafale jet fighter purchase, the entire campaign would stop dead in its tracks if the apex court rules that the government’s decision-making process was sound. Should it further refuse to examine the charges of corruption implied in the offset contracts — and it has done so in its initial order — then it would bury the Rafale controversy entirely. Such a decision would take the wind out of the Congress’ sails.

There is speculation that this may be the reason why the Congress has distanced itself from the PIL submitted by party man Tehseen Poonawala. In fact, he is reported to have withdrawn his petition on the day of the court order. That may be why perhaps the party has placed greater faith in appealing to the CVC and CAG. Even an activist-lawyer like Prashant Bhushan has preferred to take the complaint to the CBI rather than the courts. However, even if the Court does not reach a judgment on the issue before the next general elections, the government is likely to remain under pressure on the Rafale deal.